The Documents Relied On, and the Right to an Effective Representation
Chapter Thirty-Three
Syllabus topic 2, "Preventive Detention and Indian Constitution"
Pages 149 to 152 of 657
In one line
Every document and material the detaining authority relied on must be supplied to the detenu, as soon as practicable, or he cannot answer the case.
In the wording a student can write in an exam: one of the constitutional imperatives embodied in article 22(5) is that all the documents and materials relied upon by the detaining authority in passing the order of detention must be supplied to the detenu as soon as practicable, to enable him to make an effective representation. Where such material is part of the basic facts and materials on which the order rests, it must ordinarily be supplied within five days of the order, and for exceptional reasons to be recorded within fifteen days of the commencement of the detention.
The leading case
Lallubhai Jogibhai Patel v. Union of India, AIR 1981 SC 728.
Facts. The petitioner's earlier petition challenging his detention under section 3 of COFEPOSA 1974 had been dismissed by the Supreme Court. He then filed a fresh petition urging additional grounds not urged before: that despite his request the documents relied on by the detaining authority had not been supplied; that many documents were incomplete or wholly withheld, and in particular that 236 out of 460 documents purported to have been supplied were not; that his representation of 17 July 1980 for revocation, forwarded by the jailer to the Central Government, had not been disposed of; and that serving the grounds in English, a language he did not know, without a translation into his mother tongue, breached article 22(5). The State took a preliminary objection that the petition was barred by constructive res judicata.
Held. The preliminary objection was overruled: fresh additional grounds had been taken, and the rule of constructive res judicata, being a rule of public policy, is entirely inapplicable to illegal detentions and does not bar a subsequent petition for habeas corpus under article 32 on fresh grounds not taken earlier.
On the merits, one of the constitutional imperatives in article 22(5) is that all the documents and materials relied upon by the detaining authority must be supplied to the detenu as soon as practicable to enable him to make an effective representation. The materials not supplied here were part of the basic facts and materials which should have been supplied, ordinarily within five days of the order and for exceptional reasons recorded within fifteen days of the commencement of the detention, and the respondent did not say that the documents withheld were irrelevant to the detenu's case.
In matters touching the personal liberty of a person preventively detained, the constitutional imperative in article 22(5) is that any representation made by the detenu should be dealt with the utmost expedition, which had been honoured in the breach. And merely explaining the grounds in the detenu's mother tongue would not be sufficient compliance. The Court applied an earlier decision of its own in the matter of Icchu Devi Choraria against the Union of India, which it reports at [1981] 1 SCR 640. This book has not read that judgment and takes nothing from it beyond the reference and the fact that it was applied.
The Documents Relied On, and the Right to an Effective Representation
Why it matters here. It converts the abstract right in clause (5) into a working rule with a timetable, and it makes the burden the State's: an authority that withholds a document must be able to say that it was not relied on or that it was irrelevant.
The three categories, and which must be supplied
This is the framework that decides the cases, and it draws on Khudiram Das v. State of West Bengal, AIR 1975 SC 550, worked in [Subjective Satisfaction, and How Far a Court May Examine It].
Grounds. The conclusions of fact on which the satisfaction rests. Always to be communicated, under clause (5) itself.
Documents and materials relied upon. The material on which the authority acted in reaching those conclusions. Must be supplied, on Lallubhai Jogibhai Patel, because without it the representation cannot be effective.
Other particulars. Matter that did not form the basis of the satisfaction: the background of the circumstances in which the authority reached its satisfaction, or particulars administratively necessary for the State Government's supervisory function. Need not be supplied, on Khudiram Das.
The line between the second and third categories is the whole of the litigation, and the test is the same one every time: did the authority rely on it in forming the satisfaction? If yes, it must be supplied. If it was merely in the file, it need not be.
The interaction with clause (6)
Clause (6) permits the authority to withhold facts it considers it against the public interest to disclose. Where a document relied on contains such facts, the two rules meet.
The practical resolution, and the one to state in an answer, is that clause (6) permits redaction and withholding of the protected facts, not the withholding of the whole document, and it cannot be used to reduce the representation to a formality. See [Article 22(6): The Privilege Against Disclosure].
The burden
Lallubhai Jogibhai Patel places it on the State in a specific way: the respondent did not state that the documents which were not supplied were not relevant to the case of the detenu. The inference is that where a detenu identifies material that was before the authority and was not supplied, it is for the State to say either that it was not relied on or that it is irrelevant. Silence will not do.
The Documents Relied On, and the Right to an Effective Representation
That is a practical point of real value, because a detenu rarely knows what is in the file. What he can do is point to what the grounds refer to and ask for it.
A worked example
The grounds served on Nazia recite that she was intercepted at Nhava Sheva with undeclared foreign currency, that a panchnama was drawn, that her statement was recorded, and that two co-accused made statements implicating her. The panchnama and her own statement are supplied. The two co-accused statements are not.
Must they be supplied? Yes, if the authority relied on them, and the grounds say it did by referring to them. They are documents relied upon within Lallubhai Jogibhai Patel.
Can the State say they are confidential? It may invoke clause (6) in respect of facts whose disclosure would be against the public interest, but a co-accused's statement referred to in the grounds is not obviously such material, and the State would have to make and record that judgment.
What if the State simply does not respond? On Lallubhai Jogibhai Patel, the failure to say that the withheld documents were irrelevant to the detenu's case tells against the State.
And the timing? Ordinarily within five days of the order, and within fifteen only for exceptional reasons recorded in writing.
What it does NOT mean
It is not a right to inspect the whole file. Khudiram Das excludes other particulars.
It is not a right to material the authority did not use. The test is reliance.
It is not defeated by the volume of documents. In Lallubhai Jogibhai Patel 236 documents out of 460 were withheld, and the number was part of the complaint rather than an answer to it.
A second petition is not barred. Constructive res judicata does not apply to an illegal detention, so a detenu who discovers the non-supply later may petition again on that ground.
Quick revision
- All documents and materials relied upon by the detaining authority must be supplied as soon as practicable, to enable an effective representation. Lallubhai Jogibhai Patel v. Union of India, AIR 1981 SC 728, applying the earlier Icchu Devi Choraria decision reported at [1981] 1 SCR 640.
- Timetable: ordinarily within five days of the order; for exceptional reasons recorded, within fifteen days of the commencement of the detention.
- Three categories: grounds, always; documents relied on, must be supplied; other particulars, need not be, on Khudiram Das.
- The test is reliance, not presence in the file.
- The State must say that a withheld document was not relied on or was irrelevant; silence tells against it.
- Constructive res judicata does not bar a fresh habeas corpus petition on this ground.
The Documents Relied On, and the Right to an Effective Representation
Test yourself
1. State the rule about documents in one sentence. All the documents and materials relied upon by the detaining authority in passing the order must be supplied to the detenu as soon as practicable to enable him to make an effective representation.
2. Within what time? Ordinarily within five days of the order, and for exceptional reasons to be recorded within fifteen days of the commencement of the detention.
3. What is the test that separates material which must be supplied from material which need not be? Whether the authority relied on it in forming its satisfaction. Material merely in the file, or particulars of the background, need not be supplied on Khudiram Das.
4. Where the State withholds a document and says nothing about it, what follows? On Lallubhai Jogibhai Patel, the failure to state that the document was not relevant to the detenu's case tells against the State.
5. Does an earlier unsuccessful petition bar a fresh one on this ground? No. Constructive res judicata, being a rule of public policy, is entirely inapplicable to illegal detentions.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.